In Depth

The Indiana Supreme Court upheld the denial of a supermarket’s motion for summary judgment in a negligence case, finding
the company failed to carry its burden in showing that criminal activity on its premises at the time a customer was assaulted
wasn’t foreseeable.

In The
Kroger Co. v. Lu Ann B. Plonski, No. 49S02-0907-CV-347, Kroger Co. appealed the denial of its motion for summary
judgment in Lu Ann B. Plonski’s suit for damages as a result of the store’s negligence. Plonski left the store
after shopping and was attacked and mugged by a man in the parking lot.

Kroger designated affidavits from the store’s risk manager, safety manager, and head cashier. The managers’ affidavits
asserted that the Kroger store is located in a part of the city that has a reputation of low levels of criminal activity and
in the two years before Plonski’s attack, there had only been one report of criminal activity on the store’s premises.
The head cashier testified that the assailant wasn’t a guest or patron of the store.

Plonski was allowed to strike Kroger’s affidavits and argue the merits of Kroger’s summary judgment motion by
including facts contained in 60 pages of police reports the two years prior that showed more than 30 responses to criminal
activity on the store’s premises.

The trial court erred in granting Plonski’s motion to strike the Kroger affidavits and allowing her to introduce the
police reports into evidence. The affidavits did not fail in some way to comply with Indiana Trial Rule 56.

“Affidavits submitted in support of or in opposition to a motion for summary judgment may be stricken for a variety
of reasons. But a difference of opinion about what the facts are alleged to be is not one of them,” wrote Justice Robert
Rucker. “In essence, the answer to a competing claim about the facts is not to strike a party’s submissions. Instead,
when the submissions show that material facts are in dispute then summary judgment should be denied.”

But the police reports are not admissible because they were not properly designated. After she received the reports, Plonski
didn’t ask for additional time to conduct further discovery or respond to Kroger’s submissions, and she made no
effort to explain why the police reports introduced at the summary judgment hearing supported her motion to strike.

The high court focused on whether the criminal assault on Plonski was not foreseeable, a burden Kroger must prove as the
party moving for summary judgment. Kroger claimed it owed no duty to protect Plonski because her injuries were caused by someone
who wasn’t a patron or guest of the store. The affidavits of the store managers tell the court nothing about the criminal
activity or lack thereof occurring in the store or its parking lot.

Kroger also failed to show that the facts are not in dispute on the question of breach of duty. The fact that Plonski felt
safe on the many times she visited the store in the past isn’t dispositive.

“Summary judgment is rarely appropriate in negligence actions,” wrote the justice. “In this case Kroger
has persuaded us no differently.”